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ELCDismissedNotice of motion dated August 20, 2020 (petition file, number not stated in judgment)· [2022] KEELC 3812 (KLR)

Khalid & 4 others v Hilali & 14 others (Environment & Land Petition 7 of 2020) [2022] KEELC 3812 (KLR)

Environment and Land Court
12 May 2022
JOJ. O. Olola
1,611 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed landowners' bid to block others from dealing with disputed Lamu land because they could not prove ownership or fraud.

What this practically means

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Executive summary

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This is a ruling by J. O. Olola of the Environment and Land Court, delivered virtually at Nyeri on May 12, 2022, on a notice of motion dated August 20, 2020 by five petitioners seeking injunction, prohibition and/or restriction orders against fourteen respondents over land described as Mohamed Khalid Nyekombo family land, being parcels Lamu/Mokowe Old Town/824 to 866 in Mokowe, Lamu County. The petitioners claimed ownership through purchase and inheritance, asserting the respondents had allocated themselves the land and procured fraudulent titles without their knowledge or consent. The 1st to 11th respondents opposed, asserting they were registered proprietors with title deeds and long occupation. The 12th respondent, James Kamotho Gachara, alleged the petitioners came to court with unclean hands and concealed material facts. The court applied the Giella v Cassman Brown conditions and Mrao's definition of a prima facie case. It found no sale agreement supporting the alleged purchase from Mwalimu Hussein, no evidence of any registered parcel in the family's or petitioners' names, and no evidence of the alleged fraud in procurement of the respondents' 42 titles, which under section 26(1) of the Land Registration Act are prima facie evidence of absolute and indefeasible ownership. Applying sections 109 and 112 of the Evidence Act, the court held the petitioners had not discharged the legal and evidential burden of proof, and dismissed the application with costs to the respondents.

Key legal issues

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01

Whether the petitioners established a prima facie case with a probability of success to warrant an interlocutory injunction

Holding

They did not: no sale agreement, no registered parcel in the names of the late Mohamed Nyekombo or the petitioners, and only bare allegations of fraud against the respondents' titles

Reasoning

The court applied the Giella v Cassman Brown conditions and Mrao's definition of a prima facie case. The 1st petitioner claimed the land was inherited from his father and partially sold to co-petitioners, but produced no sale agreement from Mwalimu Hussein and no evidence of any title in the family's name. The respondents annexed title deeds; the petitioners' fraud allegations were unsupported. The evidential burden under sections 109 and 112 of the Evidence Act was not discharged.

p. 4
02

Effect of the respondents' certificates of title under section 26(1) of the Land Registration Act

Holding

The registered proprietors' titles are prima facie evidence of absolute and indefeasible ownership, rebuttable only on proof of fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition - none of which was demonstrated

Reasoning

The court invoked section 26(1) of the Land Registration Act to hold that the respondents' title deeds placed them as absolute and indefeasible owners. The petitioners' assertion that 42 titles were fraudulently procured was not supported by any evidence placed before the court, and following Virjay Morjaria, fraud must be distinctly alleged and distinctly proved, not inferred.

p. 4

Legal principles established

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  • He who alleges must discharge the legal and evidential burden of proof; a party alleging fraud must specifically plead and distinctly prove it
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition

Court orders

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  1. 1.The notice of motion dated August 20, 2020 is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Evidence Act, Cap 80sections 109 and 112
  • Land Registration Act, No 3 of 2012section 26(1)

Cases cited (3)

  • Giella -vs- Cassman Brown & Company Limited
    (1973) 358
  • Mrao Limited -vs- First American Bank of Kenya & 2 others
    (2003) KLR 125
  • Virjay Morjariaa v Nansingh Madhusingh Darbar & another
    [2000] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land in Lamu County (interlocutory application in a petition); specific enabling provision not stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Khalid & 4 others v Hilali & 14 others (Environment & Land Petition 7 of 2020) [2022] KEELC 3812 (KLR)", Case Analysis (2022). Notice of motion dated August 20, 2020 (petition file, number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3812/eng@2022-05-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.